BURK V. OTTAWA GAS AND ELECTRIC CO.

, HARRIS, RODGERS, PATTISON, MATTOX, MUDLEY AND KING

Smith, J. 1912 87 Kan. 6, 123 Pac. 875
Doctrine Preference as to Dividends: The holder of preferred stock is not generally a creditor of the corporation until a dividend is
declared in a certain year/s to such stockholder. But as equity regards as done that which ought to be done, a dividend/s
ought to have been declared in a certain year/s to such stockholder, they should be regarded as creditors to such extent
from such time, in this equitable action.
Summary Petitioner, as preferred stockholder, brought this action for accounting and to compel the directors and officers of
respondent to declare dividends out of its net profits. Respondents contend that the profits were used for the extensions
of the plant of the corporation. The Court remanded the case to the trial court to find whether the expenses were
necessary for the business. Moreover, the Court provided for an interpretation of the conditions imposed upon the
preferred stock and its right to dividends.
Facts Parties: Petitioners are preferred stockholders of the respondent while Respondents comprise of the corporation,
its directors and officers and 2 other corporations alleged to have some interest in the controversy.
Nature of the Case: Action to compel/require the respondents to account for all the property and assets of the
corporation in the possession of the respondents or any of them and order the directors of the corporation to
declare such dividends from the net profits of the business as should have been declared since January 1, 1906
and further, to restrain the respondents from paying out any of the money or disposing of the assets of the
corporation during the pendency of this action.
Trial Court: Ruled against petitioners. Hence this appeal.
Subject of the Appeal: Proper interpretation of the conditions imposed upon preferred stockholders as provided in
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their certificate of stock (see bold text).
Petitioners contention: The directors owed them an imperative duty to declare a dividend out of the earnings of
the business.
Respondents contention: The corporation was unable to declare a dividend because its funds were echausted
for expenditures to which it was obliged to make. The principal obligation was for extensions of the companys
plant. It was a necessary expenses allegedly because it was done for the betterment of the plant and the
accommodation of the patrons.
Issues/Ratio W/N the extension was a necessary expense of the corporation? (REMANDED to Trial Court)
There were different interpretations of the word necessary. One is that it was meant to mean the corporation is
required to make the expenses incurred to fulfill its obligation to the public of providing services. Meanwhile, the
trial court had a tendency to suggest that the term necessary as meaning merely that the extensions were
advisable as a matter of good management, for the benefit of the business.
After the action was initiated, a stockholders meeting was held voting in the affirmative to make such additional
extensions as would be profitable to the company. Thus, to better serve justice to the parties the case is remanded
with an order to take further testimony regarding the matter.

W/N the contract entitled the petitioners to the right to dividends out of the net profits of the corporation? (YES)

SEE DOCTRINE. The fair interpretation of the contract between the corporation and the holder of this stock is that
if in any year net profits are earned, a dividend is to be declared. To hold that the board of directors, that is to say,
the corporation, has a discretion to declare or not to declare a dividend when it has funds that it can use for the
purpose is to hold that, one of the parties to a contract has the option to pay something to the other or not, at its
own election, since, if the dividend is not declared at the end of the year, the benefits of the accumulated profits are
practically lost to these stockholders. Such a construction should be avoided if any other is reasonably open,
because it would result in temptation to unfair dealing.
The language already quoted, descriptive of the dividend-carrying qualities of the preferred stock under
consideration, can hardly have been intended to give the directors discretion to declare or not to declare a
preferred dividend, or it would not have contrasted so sharply with that employed in the case of the common stock.
(See Italicized portion in the footnote)
The directors of the corporation owed a positive duty to pay a dividend to the preferred stockholders when-ever in
any year there were net profits available. The funds that might be used for that purpose could not rightfully be
expended for extensions merely for the benefit of the business, nor could they be withheld to meet the expenses of
the next year. Inasmuch as the only possible source of profit to the preferred stock-holder from his investment is
the distribution of earnings in the year in which they accrue, he has a right to insist that an accounting shall be
taken annually, and that the surplus of one year, available for a dividend, shall not be carried over to meet a
possible deficiency of the next.

Held Petition is DISMISSED. SEC Judgment is AFFIRMED.

Prepared by: Galang [Corpo | Prof. Quevedo]

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Article 4. Section 1. The $250,000 capital stock of' this company shall be divided into two classes, of which $75,000 shall be preferred and $175,000
shall be com-mon stock, both of which shall have equal voting power but to which the following different conditions shall otherwise respectively attach;
viz: The preferred stock shall carry a six per cent per annum preferred, non-cumulative dividend, payable semiannually on the first days of
July and January of each year after January 1st, 1906, out of the net profits of the preceding fiscal year, and a pro tanto dividend if such
dividend fall short of 6 per cent; and the preferred stock may be--called in as a whole or in pro rata installments at 101 and accrued dividend
and cancelled at the option of the. board of directors on three months notice at any divi-dend paying period after two years dividend has been
paid thereon. Upon the common stock only such divi-dend and at such times shall be paid out of the com-panys net profits as the board of directors
may in their judgment deem it advisable to declare